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Senate Republicans To Supreme Court: Strike Down Obamacare’s Unconstitutional Individual Mandate‏

March 27th, 2012 by Mark Truman · No Comments

This morning, oral arguments at the Supreme Court resumed in the landmark case where multiple states and the National Federation of Independent Business are challenging President Obama’s massive health care law. The focus of today’s hearing is on the constitutionality of the controversial, unpopular mandate that every American must purchase health insurance. The states and the NFIB are challenging this power-grab from the then Democrat-run Congress.

Senate Republicans, led by Senate Republican Leader Mitch McConnell, filed an amicus brief in the case, arguing that the Court should rule the mandate unconstitutional. In their brief, they write, “Put simply, Congress acted without constitutional authority in enacting the Individual Mandate of the [Democrats’ health care law] … Because the Individual Mandate regulates a simple decision or choice not to purchase a particular product, it exceeds the proper scope of the Commerce Clause.” They add, “The step from regulating market participation to mandating participation in a market is novel and unprecedented. … The fact that Congress in 200 years has not attempted to regulate inactivity to force market participation also strongly suggests it never has had such authority.” Further, Senate Republicans argue, “If Congress may punish a decision to refrain from engaging in a private activity (namely, the purchase of health insurance) because the consequences of not engaging in it, in the aggregate, could substantially affect interstate commerce, then the Congress can require the purchase of virtually anything.”

Discussing Commerce Clause precedents, the Senate GOP brief points out, “none even suggests that, under the Commerce Clause, Congress has the power to affirmatively obligate otherwise passive individuals to engage in a particular economic activity – to purchase a particular good or service – and to punish them if they choose not to do so. What the [Obama administration] urge[s], therefore, is frankly an unprecedented interpretation of the Commerce Clause – an interpretation that, if adopted, would result in a dramatic expansion of Congressional power without any realistic limitation on its reach. Because the Individual Mandate regulates a simple decision or choice not to purchase a particular product, it exceeds the proper scope of the Commerce Clause.”

Several lower courts have agreed with this argument. The 11th Circuit Court of Appeals concluded, “Economic mandates such as the one contained in the Act are so unprecedented, however, that the government has been unable, either in its briefs or at oral argument, to point this Court to Supreme Court precedent that addresses their constitutionality. Nor does our independent review reveal such a precedent.” The D.C. Circuit Court noted, “The Government concedes the novelty of the mandate and the lack of any doctrinal limiting principles; indeed, at oral argument, the Government could not identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional, at least under the Commerce Clause.” According to the 6th Circuit Court, “The mandate is a novel exercise of Commerce Clause power. No prior exercise of that power has required individuals to purchase a good or service.” Further, the court said that “Congress crossed a constitutional line in imposing this unprecedented requirement.”

Even independent offices in Congress have recognized the unprecedented nature of the powers Democrats claimed for Congress in passing this bill. The Congressional Research Service wrote, “This is a novel issue: whether Congress can use its Commerce Clause authority to require a person to buy a good or a service and whether this type of required participation can be considered economic activity.” And back in 1994, the Congressional Budget Office noted, “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.”

Seventy-two percent of Americans think the individual mandate imposed by President Obama’s health care law is unconstitutional. And even a New York Times poll finds, “Two-thirds of Americans want the Supreme Court to overturn some or all of the health care law . . . . At the heart of the opposition is the individual mandate requiring Americans to obtain health insurance, the least popular part of the bill and a crucial piece at the center of the court arguments, which began Monday and will turn to the mandate on Tuesday.”

Leader McConnell said yesterday, “[A]s one of the many public officials who filed a brief before the court opposing this law, I believe strongly that the law is unconstitutional, and I hope the court agrees. But even if the court ends up disagreeing with me, the case for repeal has become increasingly difficult to refute. . . . [T]he bill [President Obama] gave us and that Democrats forced through Congress on a party-line vote just isn’t working. Instead of lowering costs, it’s increasing them. Instead of strengthening Medicare, it raided it. Instead of helping states, it’s created financial burdens they can’t even bear. Instead of lowering insurance premiums, it’s caused them to go up. When it comes to jobs, some have called the law the single biggest detriment to job creation in America right now. And most Americans believe it’s unconstitutional. This law is a mess, and regardless of what the court decides, it needs to be repealed and replaced with common sense reforms that actually lower costs and that Americans really want.”

Rasmussen Reports: 62% Think Health Law Will Cause Companies To Drop Employee Health Insurance

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